JUDGMENT PER A.S. GADKARI, J. : 1. The Appellant, State of Maharashtra has preferred the present Appeal questioning the correctness of the judgment and order dated 28 January 2011 passed by the Court of Sessions at Dindoshi, Goregaon, Mumbai in Sessions Case No.37 of 2010 thereby acquitting the Respondents under Section 376(2)(g) of the Indian Penal Code and under Section 5 of the Prevention of Immoral Traffic Act. 2. The facts in brief which can be enumerated from the record be stated as under : i) On 16 June 2009 P.W.3 – Devendra Borade had been to Chhatrapati Shivaji Complex, Ekta Nagar, MHADA, Charkop, Mumbai to meet his sister. When he was walking through the Ganesh Nagar area at about 2 p.m., he saw one small girl aged about 8 to 9 years who was in school uniform and was weeping. The said girl was in frightened condition and therefore P.W.3 – Devendra Borade went near to that girl and asked what had happened. The said girl told him that she wanted to go to police. When P.W.3 – Devendra Borade asked her about the reason and what had happened for going to the police, the said girl told him that she was beaten by her father and therefore she wanted to approach the police. The said girl informed her name as Alina to P.W.3 – Devendra. P.W.3 – Devendra thereafter took her to Kandivali Police Chowki by an auto rickshaw. The police made an enquiry with the said girl Alina. P.W.3 – Devendra left the said girl Alina in the custody of the police at the said police Chowki after leaving his mobile number with Head Constable Kadam. ii) On 16 June 2009, P.W.5 – Santosh Kadam, Police Head Constable then attached to Kandivali Police Station was on duty at Laljipada Police Bit Chowki. At about 2.00 p.m. P.W.3 – Devendra Borade brought one girl viz. Alina Das hailing from Gandhi Nagar Zopadpatti to Laljipada Police Bit Chowki. The said girl was in frightened condition and was weeping. P.W.5 – Santosh Kadam thereafter made an enquiry with her and the girl told him her name as Alina and her address as Ganesh Nagar, MHADA and also gave the address of her grandfather. The said girl also gave cell number of her grandfather. P.W.5 – Santosh Kadam thereafter called her grandfather. P.W.5 – Santosh Kadam thereafter made an enquiry with her and the girl told him her name as Alina and her address as Ganesh Nagar, MHADA and also gave the address of her grandfather. The said girl also gave cell number of her grandfather. P.W.5 – Santosh Kadam thereafter called her grandfather. When the grandfather came to Laljipada Police Chowki, the girl rushed towards her grandfather and expressed her desire to accompany with her grandfather viz. Arunachalam Das – P.W.1. The custody of the said girl was handed over to P.W.1 – Arunachalam Das, after taking his signature in the movement register kept at the said Police Chowki. P.W.1 – Arunachalam Das is the father of Chatish – original accused No.1 and Respondent No.1 herein. Respondent Nos.2 and 3 herein are the friends of Respondent No.1. On 16 June 2009, P.W.1 – Arunachalam Das received a phone call on his mobile phone from Laljipada Police Chowki and the police officer informed him that his granddaughter Alina was in their Chowki and the police called him in the Chowki immediately. P.W.1 – Arunachalam Das when went to the Police Chowki saw Alina in frightened condition. Alina was not in a condition to speak. He took the custody of Alina on 16 June 2009 and took her with him to his residence. He kept her there for two weeks. He was residing at his garage and at that relevant time his wife i.e. the grandmother of Alina was at Kerala. He therefore sent Alina to Kerala to his daughter viz. Archana. During the stay at Kerala Alina told Archana that Respondents 1 to 3 had assaulted her sexually. Archana, the daughter of P.W.1 – Arunachalam told this thing to her husband and her husband i.e. the son-in-law of P.W.1 – Arunachalam in turn told P.W.1 about the same. P.W.1 – Arunachalam thereafter sent his friend Charan Singh to Kerala to bring Alina to Mumbai and accordingly Alina was brought to Mumbai. iii) After making enquiry with Alina she disclosed to P.W.1 – Arunachalam that accused No.1 / Respondent No.1 used to sexually assault her and used to threaten her to kill her if she discloses the said fact to anybody. At that relevant time, Alina was in second standard. iii) After making enquiry with Alina she disclosed to P.W.1 – Arunachalam that accused No.1 / Respondent No.1 used to sexually assault her and used to threaten her to kill her if she discloses the said fact to anybody. At that relevant time, Alina was in second standard. P.W.1 – Arunachalam thereafter lodged First Information Report with the Charkop Police Station on 3 November 2009 which was numbered as C.R. No.222 of 2009 under Section 376(2)(f) of the Indian Penal Code and under Sections 3 and 5 of the Prevention of Immoral Traffic Act, which is at Exhibit 18. The said crime was registered by Police Sub-Inspector C.M. Suryavanshi and investigation was started in that behalf. iv) The investigation was thereafter taken over by P.W. 13 – S.M. Pendulkar, Police Inspector then attached to Charkop Police Station. P.W.13 – Police Inspector Pendulkar thereafter visited the spot of occurrence, traced the accused persons and apprehended them. He also issued a letter dated 4 November 2009 which is at Exhibit 51 to the Medical Officer, Nagpada Police Hospital, for examination of the victim girl and for ascertaining the age of the victim. P.W.13 – Police Inspector Pendulkar took all the necessary steps as contemplated under the provisions of law for effectively investigating the said crime. v) P.W.11 – Uttam Sawant, Police Inspector was then attached to Charkop Police Station. He took over the investigation of Crime No.222 of 2009 from P.W.13 – Police Inspector Pendulkar on 23 January 2010. He recorded the statements of various witnesses and after receipt of the necessary documents from the concerned agencies, he completed the investigation and submitted final report in the Court of Additional Metropolitan Magistrate, 24th Court, Borivali, Mumbai against the Respondents herein. vi) The learned Additional Metropolitan Magistrate, Borivali, Mumbai committed the said case to the Court of Sessions vide its order dated 22 February 2010. The charge below Exhibit 7 was framed by the Trial Court. The contents of the charge were read over and explained to the Respondents in vernacular language to which they denied and claimed to be tried. The defence of the Respondents was of total denial and of false implication. The prosecution in support of its case examined in all thirteen witnesses. The contents of the charge were read over and explained to the Respondents in vernacular language to which they denied and claimed to be tried. The defence of the Respondents was of total denial and of false implication. The prosecution in support of its case examined in all thirteen witnesses. The learned Trial Court after recording the evidence of witnesses and after hearing the parties to the said case, acquitted the Respondents from the charges leveled against them, as stated herein above, by its judgment and order dated 28 January 2011. The said order is impugned in the present Appeal. 3. Heard Smt. V.R. Bhonsale, learned Additional Public Prosecutor for the Appellant – State of Maharashtra and Mr. Arfan Sait, learned advocate appointed for the Respondents. It may be noted here that after the Appeal was admitted, Respondent No.1 Chatish Arunachalam Das was arrested on 24 December 2011 and Respondent No.3 – Ashok Baliram Nayak Sahu was arrested on 16 June 2012 by the police as contemplated under Section 390 of the Indian Penal Code. As they could not comply with the bail conditions, they are in jail. As far as accused No.2 –Sabir Yusuf Sayyed @ Sameer is concerned, he has availed the bail, however, he did not appear at the time of final hearing of the present Appeal, neither he appointed any advocate to represent him. As Respondents 1 and 3 i.e. original accused Nos.1 and 3 are in jail and are impoverished and could not appoint an advocate at their expenses, hence Advocate Mr. Arfan Sait came to be appointed through legal aid committee to represent Respondents 1 and 3. As Respondent No.2 was not represented by any advocate, at the request of this Court Mr. Arfan Sait, who is well conversant with the facts of the present case expressed his willingness to represent Respondent No.2 and argued the matter for and on behalf of Respondent No.2 also. 4. The learned APP in her arguments submitted before us that there is sufficient evidence on record which points out the finger of guilt principally against Respondent No.1, who is the father of victim girl, Alina and also against Respondent Nos.2 and 3 in committing the offence under Section 376(2)(f) of the Indian Penal Code. 4. The learned APP in her arguments submitted before us that there is sufficient evidence on record which points out the finger of guilt principally against Respondent No.1, who is the father of victim girl, Alina and also against Respondent Nos.2 and 3 in committing the offence under Section 376(2)(f) of the Indian Penal Code. The learned APP further submitted that the evidence of P.W.1 – Arunachalam, P.W.2 – Gurucharan Singh, P.W.6 – Maya Arunachalam Das and P.W.7 – the victim girl viz. Alina Chatish Das has not been considered by the learned Trial Court in its proper perspective. She has further submitted that taking into consideration the evidence available on the record, the learned Trial Court ought not to have acquitted the Respondents and ought to have convicted them for the offence charged against them. She therefore prayed that the present Appeal may be allowed and the Respondents may be convicted for the offence for which they are charged. 5. Mr. Arfan Sait, learned advocate appointed for the Respondents vehemently submitted that the learned Trial Court after appreciating the evidence on record in its proper perspective has rightly reached to the conclusion and has correctly acquitted the Respondents from the charges. He, therefore, prayed that the present Appeal may be dismissed and the impugned order of acquittal may be upheld. 6. In order to effectively deal with the submissions advanced before us by the learned APP and the learned advocate appointed for and on behalf of the Respondents, it would be useful to refer to the relevant evidence adduced by the prosecution in support of its case. In our considered opinion, the evidence of P.W.1 – Arunachalam Das, P.W. 6 – Maya Arunachalam Das, P.W. 7 – Alina Das, the victim girl and the evidence of P.W.10 – Baban Shinde, the medical officer then attached to Police Hospital, Nagpada, is of much relevance while considering the case of the prosecution. P.W.2 – Gurucharan Singh is the friend of P.W.1 – Arunachalam, who on the request of P.W. 1 brought the victim girl Alina back to Mumbai from Kerala. P.W.3 – Devendra Borade is a driver by profession and was also working as a press reporter in Hindi News channel. P.W.2 – Gurucharan Singh is the friend of P.W.1 – Arunachalam, who on the request of P.W. 1 brought the victim girl Alina back to Mumbai from Kerala. P.W.3 – Devendra Borade is a driver by profession and was also working as a press reporter in Hindi News channel. The said witness initially noted the victim girl Alina on 16 June 2009 in frightened condition and took her to the Laljipada Police Chowki, as has been stated in the foregoing paragraph. P.W.4 – Atul Kapadia is the Pancha witness to the place of incident / offence which was pointed out by the victim girl viz. Alina. P.W.5 – Santosh Kadam is the Constable who was on duty on 16 June 2009 at Laljipada Police Chowki and to whom P.W.3 Devendra took the girl on 16 June 2009. P.W.8 – Mohd. Yusuf Sayyed is the brother of Respondent No.2 and in our view the said witness is of not much relevance. P.W.9 – Priti Louis is a doctor who was then attached to Sir J.J. Group of Hospitals, Mumbai and was on duty on 6 November 2011 when the victim girl was referred to her for gynecological examination from Nagpada Hospital. This witness states that the victim girl when was brought for gynecological examination, refused to perform the said examination at the hands of this witness and did not allow her to be examined. She has further stated that the victim girl did not co-operate for the said examination. P.W.11, 12 and 13 are the investigating officers and the steps taken by them during the course of investigation have been narrated by them in their testimony. Their evidence is of formal nature as far as the merits of this Appeal is concerned. 7. P.W.1 – Arunachalam Das is the father of Respondent No.1 and grandfather of P.W. 7, the victim girl Alina. P.W.1 – Arunachalam Das is also the complainant who has lodged the First Information Report with the police. P.W.1 – Arunachalam Das in his testimony has stated that Respondent No.1 is his son. P.W.1 – Arunachalam Das is residing at Mumbai since last fifty years. He has stated that Respondent No.1 was educated upto XIth standard and had done course of Radio Technology. In the year 2000 Respondent No.1 had gone to Kambodia for service and came back to India after a year. P.W.1 – Arunachalam Das is residing at Mumbai since last fifty years. He has stated that Respondent No.1 was educated upto XIth standard and had done course of Radio Technology. In the year 2000 Respondent No.1 had gone to Kambodia for service and came back to India after a year. Respondent No.1 got married at Kambodia and had one daughter by name Alina. When Respondent No.1 came to India, he was alone. After a month or thereafter Respondent No.1 wanted to go back to Kambodia and asked money from P.W.1 – Arunachalam Das. Respondent No.1 also harassed P.W.1 Arunachalam for money. After receipt of the money from P.W.1 – Arunachalam, Respondent No.1 went to Kambodia. In the year 2003 Respondent No.1 again came to India without his wife and daughter and informed P.W.1 – Arunachalam that he had left the wife and informed that the daughter Alina - P.W.7 was kept in Mother Teresa Institution. Respondent No.1 again demanded for money from P.W.1 to bring his daughter Alina to India. As P.W.1 – Arunachalam refused to pay him any money, Respondent No.1 went to his sister i.e. the daughter of P.W.1, Archana at Kerala. The son-in-law of P.W.1 – Arunachalam paid an amount of Rs.32,000/- to Respondent No.1. Mother Teresa Institute of Kambodia had transferred the daughter of Respondent No.1, Alina to the institute at Kolkatta. Respondent No.1 went to Kolkatta and brought his daughter Alina to Mumbai. At that time Alina was three years old. P.W.1 – Arunachalam has further stated in his testimony that Respondent No.1 caused Alina to beg and therefore P.W.1 – Arunachalam took custody of Alina. He has further stated that Respondent No.1 used to consume liquor and used to take Alina for outing late at night and used to come back late at night. 8. P.W.1 – Arunachalam has further stated in his testimony that in the year 2008 Respondent No.1 performed marriage with one girl Laxmi from Kerala and came back to Mumbai to the house of P.W.1 – Arunachalam at Shivaji Sankul and therefore P.W.1 went to stay at garage. P.W.1 – Arunachalam has stated that Respondent No.1 used to consume liquor and used to quarrel with the wife of P.W.1 – Arunachalam and also beat the wife of P.W.1 due to which the wife of P.W.1 had sustained fracture to her hand. P.W.1 – Arunachalam has stated that Respondent No.1 used to consume liquor and used to quarrel with the wife of P.W.1 – Arunachalam and also beat the wife of P.W.1 due to which the wife of P.W.1 had sustained fracture to her hand. P.W.1 – Arunachalam thereafter sent his wife to Kerala for treatment. P.W.1 – Arunachalam has stated that Respondent No.1 used to take Alina with him and used to come back home at 12 to 12.30 at night. That Respondent No.1 again shifted to Ganesh Nagar Zopadpatti along with Alina and started residing in one hut of Sameer Tailor, accused No.2 / Respondent No.2. P.W.1 – Arunachalam has stated that on 16 June 2009 he received a phone call on his mobile phone from Laljipada Police Chowki wherein the police informed him that his granddaughter was in Chowki and the police called him to Chowki immediately. P.W.1 - Arunachalam went to the police chowki and saw Alina in frightened condition. P.W.1 – Arunachalam took custody of Alina and took her to his garage and kept her there for two weeks. As P.W.1 was residing at garage and his wife was residing at Kerala, he sent Alina to Kerala to stay with his wife at the residence of his daughter. During the stay at Kerala Alina told Archana i.e. the daughter of P.W.1, that accused Nos.1, 2 and 3 assaulted her sexually. The daughter of P.W.1 viz. Archana told the said fact to her husband and her husband i.e. son-in- law of P.W.1 – Arunachalam informed the said fact to P.W.1. Thereafter P.W.1 sent his friend Gurucharan Singh to Kerala to bring Alina to Mumbai. Gurucharan Singh accordingly brought her to Mumbai. 9. After Alina was brought to Mumbai, P.W.1 – Arunachalam enquired with Alina as to what had happened with her when Alina told him that Respondent No.1 in the absence of his mother i.e. the wife of P.W.1, used to have sexual relations with her and used to threaten her to kill if she discloses the said fact to anybody. P.W.1 – Arunachalam had stated that at that time Alina was in the second standard. Alina informed P.W.1 – Arunachalam that when she was in the first standard, since then Respondent No.1 was behaving with her in such a manner. P.W.1 – Arunachalam had stated that at that time Alina was in the second standard. Alina informed P.W.1 – Arunachalam that when she was in the first standard, since then Respondent No.1 was behaving with her in such a manner. Alina further informed him that on Sundays and / or other holidays, Respondent No.1 used to take her with him and used to send her to Respondents 2 and 3. She further informed P.W.1 – Arunachalam that the said accused persons also used to assault Alina sexually and for the said act Respondent No.1 used to take an amount of Rs.200/- to Rs.500/- from the said persons. Alina had further informed P.W.1 that Respondent No.1 was also compelling his wife Laxmi to keep relations with other persons and therefore Laxmi had left the company of Respondent No.1. 10. P.W.1 – Arunachalam has stated in his testimony that after hearing the said incident from Alina, he lodged complaint with Charkop Police Station against Respondent No.1 and others on 3 November 2009. The said First Information Report is at Exhibit 18. P.W.1 – Arunachalam was cross examined at length by the Respondents. In the cross examination, various omissions have been brought on record by the defence which has undoubtedly shaken the credibility of P.W.1 – Arunachalam. In the cross examination P.W.1 has admitted that there was a dispute between him and Respondent No.1 / accused No.1. P.W.1 has further admitted that Alina is in his custody and he used to maintain Alina. As stated earlier, the cross examination of P.W.1 establishes that his testimony is full of omissions and it cannot be relied upon by giving much credence. 11. P.W.6 – Maya Arunachalam Das is the wife of P.W.1 and mother of Respondent No.1. This witness though has narrated the facts to some extent in consonance with her statement recorded by the police, she ultimately did not support the case of the prosecution and was declared hostile. Even in her cross examination, no material which is useful to the prosecution has been elicited. This witness has admitted in her evidence that she was residing with her daughter – Archana at Kerala. Even in her cross examination, no material which is useful to the prosecution has been elicited. This witness has admitted in her evidence that she was residing with her daughter – Archana at Kerala. It is pertinent to note here that the prosecution has neither examined Archana nor her husband and therefore the link between the fact about the information given by Alina to Archana and Archana to P.W 6 – Maya Arunachalam Das is snapped. The link about this circumstance is incomplete. 12. P.W.7 is the victim girl Alina. At the time of recording of her testimony she was nine years of age. This child witness has narrated the incident in great detail. This witness in her examination in chief has narrated the various acts committed by the Respondents in her testimony. In her cross examination, this witness has in unequivocal terms admitted that P.W.1 i.e. her grandfather and P.W.6 i.e. her grandmother were instructing her for giving the evidence. She has further admitted that P.W.1 i.e. the grandfather was instructing her as to what is to be stated before the Court and what should not be stated before the Court. She has further admitted that she has stated the names of the 'rapist' before the police. She has further admitted that a quarrel took place between Respondent No.1 and P.W.1 – Arunachalam because Respondent No.1 was coming to the house after consuming liquor and Respondent No.1 used to pick up quarrels on some trifle issues. She has further admitted that P.W.1 i.e. her grandfather was fed up due to the activities of Respondent No.1 and therefore P.W.1 – Arunachalam started residing at garage. This witness in paragraph 11 of her evidence has admitted that she was participating in the competition of race and had stood first. She was also participating in the competition of long jump and high jump and was scoring good marks in the long and high jump. 13. It further appears from the record that initial statement of P.W.7 i.e. the victim girl Alina was recorded by police on 30 October 2009. However, the First Information Report is recorded on 3 November 2009. She was also participating in the competition of long jump and high jump and was scoring good marks in the long and high jump. 13. It further appears from the record that initial statement of P.W.7 i.e. the victim girl Alina was recorded by police on 30 October 2009. However, the First Information Report is recorded on 3 November 2009. The prosecution has not given any explanation for the delay of four days in recording the First Information Report and it appears to us that the recording of the First Information Report at the instance of P.W.1 – Arunachalam which is at Exhibit 18 is an afterthought and filed with malafide intention. 14. The defence has elicited various omissions in her cross examination. What is surprising to note here is that this child witness has stated in her cross examination that she has read the word 'rape' in book and in her earlier part of the testimony she has described the sexual assault as 'galat kaam kiya' as a synonym to the term 'rape'. In view of the admissions given by this witness, in our considered opinion, this child witness was tutored by P.W.1 – Arunachalam to give evidence as per his wish before the Court and we find that her evidence is not reliable and trustworthy. 15. P.W.10 is Dr. Baban Shinde who was then attached as medical officer at the Police Hospital, Nagpada, Mumbai. This witness has stated in his testimony that on 3 November 2009 he examined Alina Chatish Das who was brought by WPN No.85 of Charkop Police Station. He has admitted in the examination in chief that he obtained the consent of her grandfather before conducting the examination of the said victim girl. In his testimony this witness has stated that, the history given by the victim girl was of sexual abuse by her father and other persons in the years 2007 and 2008. On examination, P.W.10 – Dr. Shinde found that there were no injuries over the private part. Secondary sex characters were not developed. Abdomen and anus were normal. In his testimony this witness has stated that, the history given by the victim girl was of sexual abuse by her father and other persons in the years 2007 and 2008. On examination, P.W.10 – Dr. Shinde found that there were no injuries over the private part. Secondary sex characters were not developed. Abdomen and anus were normal. On local examination of private part Labia Majora - normal, Labia Minora - normal, Clitoris were normal, type of Hymen - Circular Hymen Torn, Position of Tears - 2, 5, 7, 11 O' Clock, Tears were old healed, Hymenal Orifice Admits one finger, No injury to the perineum, No foreign body, no signs of S.T.D., Vaginal smear not made, Blood was collected for blood grouping and blood for HIV, VDRL collected. Ossification Test was done and the X-ray of Elbow & wrist were taken vide X-ray No.4068 dated 3 November 2009. He opined the age of the victim as 8 to 9 years. The medical reports submitted by this witness are at Exhibit 43. 16. It is important to note here that earlier the victim girl had refused to get examined herself at the hands of P.W.9, Dr.Priti Louis who was a gynecological professor and an expert in the field. The medical report submitted by P.W. 10 – Dr. Shinde is at Exhibit 43. The clause No.4 of Exhibit 43 reads as under : “I am ready to get my granddaughter named Alina medically examined by gents doctor.” The said consent has been given by P.W.1 – Arunachalam. In clause No.8 of the said Exhibit, it has been further mentioned on behalf of the victim girl that she was sexually assaulted by her father and other persons in the years 2007 and 2008. 17. In the cross examination, this witness has admitted that he agreed with the illustration given in the book written by Parekh on the Medical Jurisprudences that when a girl is subjected to multiple sexual assault for couple of years, then Labia Majora would be fleshy and would not completely closed to be vaginal orifice, then labia Minora would be clitoris and not covered by labia Majora and clitoris is enlarged. 18. He has admitted that it is true that in this case labia Majora, labia Minora and clitoris are normal. 18. He has admitted that it is true that in this case labia Majora, labia Minora and clitoris are normal. He has further admitted that it is true that if the sexual assault is committed for couple of years with different persons, then hymenal orifice will admit more than two fingers. He has further admitted that in this case, hymenal orifice admits only one finger. 19. This medical evidence led by the prosecution falsified the version of P.W.7 – Alina and P.W.1 – Arunachalam about the sexual assault by the Respondents on the victim girl P.W.7. In other words, the version of P.W.7 i.e. the victim girl is not at all supported by the medical evidence and therefore also we find that the testimony of P.W.7 is not trustworthy and reliable. 20. We have scrutinized the entire evidence available on record and we have also perused the impugned judgment and order passed by the Learned Trial Court and we are of the considered opinion that the learned Trial Court has not committed any error either on facts or in law while acquitting the Respondents in Sessions Case No.37 of 2010 by the present impugned judgment and order dated 28 January 2011. 21. Hence, we find no merit in the Appeal and the Appeal is dismissed. Accused Nos. 1 and 3 i.e. Respondent No.1 – Chatish Arunachalam Das and Respondent No.3 – Ashok Baliram Nayak Sahu are in jail and they shall be released from jail forthwith, if not required in any other case. Accused No.2 i.e. Respondent No.2 herein – Sabir Yusuf Sayyed @ Sameer is on bail and his bail bond stands cancelled. Fees payable to Mr. Arfan Sait, learned advocate appointed for and on behalf of the Respondents are quantified at Rs.5,000/- and the same shall be paid to him as expeditiously as possible.